*1 KAHALEKAI, MIRIAM SUSAN HALAS, WILLIAM NAKAMURA, MURAKAMI, DOROTHY FLORENCE MUROKI, KALUAKINI, MARION EVANS, PATRICIA ELLEN NAKAMOTO, SAM, VICTORIA G. AH ALMA TORRES, MENDONCA, DOROTHY HOOGS, GRAIL CARLIN, B. A. ETHEL TAKAKUA, DENNIS PALMER, WILLIAM HENNESY, KIM, KIM, M. B. IIDA, HAROLD S. COOPER, NORA OTA, MITORI OTA, MAMARU HEISHMAN, A. S. NISHIKI, CELINE MAUIDE, MAX GORING, K. CRAFT, G. RAOBERT CORNS, KELLEY WACHTER, LYNNE THELMA KAMIDOI, ITO, HENRY SUEHIRO, YOSHIE MACK NAKAMOTO, ITO, KANEKO, KINUE MATSUE TANAKA, MABEL YAELAS, DOMINGA MISAO NISHIKUNI, MUROGAWA, TAKAYO YOSHIKO TOKUOKA, YABU, RICHARD CARVALHO, RAY DALIVA, EUSEBIO KAMEYA, CHOZEN RAY, ANNE PETRO, YVONNE LAKE, ELIZABETH YUKIO WATANABE, MICHIYU KAWAMURA аnd KAREN RINGSTAD, Plaintiffs, ASATO DOI, v. NELSON Governor, Lieutenant Hawaii; State of President PATY, WILLIAM 1978 Hawaii Constitutional Convention; IWAMOTO, KAREN Chairperson of the Submission and Committee, Information 1978 Hawaii Convention; Constitutional and The 1978 Hawaii Convention, Constitutional Defendants
NO. 7216 MAUI, THIRTY-FOUR VOTERS THE OF COUNTY OF Plaintiffs, DOI, Governor, v. NELSON Lieutenant State Hawaii; PATY, President WILLIAM 1978 Hawaii Convention; IWAMOTO, Constitutional KAREN Chairperson of the Submission and Information *2 Convention; and Committee, Hawaii Constitutional Convention, Defendants the 1978 Hawaii Constitutional NO. 7218 1, 1979 FEBRUARY OGATA, RICHARDSON, C.J., AND MENOR JJ., KIDWELL, RETIRED AND JUSTICE THE VACANCY. FOR KOBAYASHI *3 MENOR, OPINION OF THE COURT BY J. seeking the results original
This is an action to invalidate 7, dealing with general'election of the November presented amendments to the State Constitution to the elec- Conven- approval torate for its the 1978 Constitutional Report on governor’s Computer-Final The lieutenant tion.1 proposed all shows that of the the results election necessary margin.2 constitutional passed amendments however, amendments issue, At is whether required and manner in the form submitted to the voters were by law. deliberations, as the adopted Convention
Following its entitled, conclusions document expression definitive of its the Amend- “The the State of Hawaii With Constitution of of 1978.” by the Convention Proposed ments Constitutional Committee This was referred to the Convention document That Submission and Information. committee resolution, by the adоpted Convention form of 30), pro- (Resolution provided in which was No. at the be submitted for ratification posed amendments election, in the ballot general form November the resolution The attachments to attached to the resolution. and the infor- punch-card texts of the ballot consisted gen- subsequently mational booklet which were used eral election. listed punch-card ballot A into Parts A and B. Part was divided
short title. The ballot “yes” “no” all proposed or vote on provided for a blanket of thé provided B for a “no” vote on each amendments. Part *4 1 1976, by when Convention was mandated the voters in The 1978 Constitutional propose question, a a revision of or amendments “Shall there be convention to placed general first constitu on election ballot. Hawaii’s the Constitution?” was document, delegates wqs a 63 met to draft tional convention held in 1950 when operational Another Hawaii became state 1959. became official and when delegates proposed 23 met and amendments convention was held 1968 when 82 delegates and the number The convention was attended 102 the voters. 1978 34. offered to the electorate totalled amendments XV, 2, part, provides pertinent § that revision or amendments Article “[t]he by majority only general approved of all the votes if at a election shall effective constituting thirty-five percent upon question, majority at least tallied approved substantial at ’’Most were electorate vote cast the election. total popular margins. vote amendments, proposed listing preceded which was
by “I caption: VOTE YES ON EACH OF THE PROPOSED AMENDMENTS AS LISTED BELOW EXCEPT THAT I VOTE NO ON THE FOLLOWING:.” Neither the effect of proposed amendments nor the numbers of the amended articles and sections were set forth in punch-card ballot. However, contained, the ballot preceding B, Parts A and following:
“Please read instructions and information in the booklet part which is The proposed this ballot. full text of the 1-34, inclusive, amendments on the ballot numbered inspection your voting available for unit.” (Emphasis added) booklet informational attached to the resolution set
forth, under the same numbers and short titles used in the punch-card ballot, descriptive brief material under the words “If adopted, provides:.” exception this amendment With the 24, proposed 34, article and section parenthesis numbers were set forth in after each short title. example, descriptive respect For material with to the first amendment headed: CIVIL; (Article 1. 12 MEMBER CASE AMOUNT JURY: I, 14) 13 and Section booklet, The forms of the ballot and informational election,3 printed and in the to those at- used conformed resolution, except tached to the and section num- article added, booklet, bers were in the informational after the short titles sec- amendments 24 and 25. No article or title of appeared tion numbers beside the short 34, in either instance. the revised Constitution were Copies of full text of officers, including all municipal distributed state and clerks, county September They 1978. were also dis- library state tributed to the main and branch libraries of the *5 They essentially opinion. Appendices “A” “B” follow and attached to See in the 1968 election. same format as those used availability system at the election. least weeks before two have been ascer- library of the could copies for examination a phone office at phone tained the Convention call to by newspaper number advertise- known generally made general public ments. distributed to the No was information availability of the text of the revised respect to the libraries; however, a “Con-Con Sum- Constitution at public every mary” mailed to the household the Convention they that registered did advise voters could voter thе State in- the voter wording obtain exact of the amendments from Ho- formation at headquarters center located Convention nolulu. amendments, proposed work on the
Having completed its 21, Between September 1978. recessed on Convention election, 7, general and the November date In- Convention, on and Submission through its Committee formation, the education of plan its implemented concerning amendments. proposed electorate every registered voter in the It mailed to the household pro- Summary” containing digest State “Con-Con 1978, 29, it caused to be October posed amendments. On Sunday Star- advertising supplement an published Tribune Advertiser, as to the Hawaii well as Bulletin and News, Each of Herald, and the Island. The Maui Garden identified which was of the revised Constitution sections used in the informational booklet and section number article supplement. full text in this printed in the election and reflected by the Convention adopted amendments Other to the Commit- was referred revised Constitution in the in the printed and Information were tee Submission on by the was followed supplement This supplement. newspaper 1-10 amendments of the summaries publication amendments 1978, 30, summaries October 1978, summaries of 1, 11-21 on November These summaries 1978. November 22-34 on the Honolulu Advertiser in the Honolulu published were circu- general newspapers Star-Bulletin, which are both of combined were summaries the State. These within lation *6 5, newspapers 1978, republished these on November as a summary This combined two-page advertisement. also Oahu, News, Press on to the Sun the Maui the distributed Herald, and the Garden Hawaii Tribune Island for dissemina- These summaries tion to their readers. contained relevant on of the amendments which information some were not supplement. the booklet or in the reflected in informational during Additionally, provided this period the Convention and publication newspaper for the of advertisements of radio referring persons and television announcements interested to telephone the center and Convention information its number for questions; for answers to the establishment of a speakers delegates make available to interested bureau to convention amendments; organizations explaining for talks convention and radio programs for and television which convention the The of delegates discussed amendments. office voter governor lieutenant also conducted a statewide with program designed education to familiarize the electorate final voting procedures. and ballot Convention’s expended report advertising expenditures on shows that $140,627.43 public total the amendments of to educate prior general election.
I. this pleadings is whether The initial issue raised proceedings. We hold jurisdiction court has to entertain XI, court Part this Chapter we do. vests HRS Moreover, jurisdiction subject over matter of this action. judgments, empowered “to such court make award decrees, mandates, orders and issue such executions take acts and such other processes, other and do such other steps may necessary carry powers into effect full promotion given byit law or which are or shall be § 602-5(7). it.” justice in HRS pending matters before changes in the validity ascertain the power “The have, courts, they resides constitution authority to determine uniformity, practical exercised submission, validity or ratification proposal, change validity organic question in the law. The *7 the of to the is a adoption an amendment constitution Jur.2d, judicial a 16 political question.” and not Am. Con- Law, § 43. stitutional
II. by plain the In merits issues raised considering the of the judicial tiffs, guided by principle the cardinal we are to be electo by ratified thе that amendments review constitutional invalid they can be shown to be upheld rate will be unless 423, Price, 68 Idaho a Keenan v. beyond reasonable doubt. 138, (1948); City v. 78 N.M. Sproule, P.2d 662 Raton 195 showing invalidity is (1967). P.2d The burden of 429 336 of the And upon party challenging the results election. in indulged is to be favor “[e]very presumption reasonable adopted have at people amendment which constitutional Buchanan, City v. P.2d general election.” Glendale 578 court, 221, 224 State (Colo. 1978). In from quoting Keenan 1007, (1924), 355, P. said: Cooney, v. 70 Mont. 1009 always upon enter a consideration as we “[HJere adoption its validity after a constitutional amendment every in its favor: The presumption people to possible it is condemn question is not whether it, and amendment, possible uphold but whether it is nullity judgment its shall not it unless our we condemn 667. P.2d at beyond a reasonable doubt.” 195 is manifest is the corollary foregoing principle prop- oft-stated A they what to know people presumed that are osition “[t]he them submitted to want, proposition understood the to have vote to have approval their implications, its in all of good and public is for that determined [the] ” v. Larkin sovereign people. of a opinion free expresses the 59, (1939). 234, Gronna, N.W. 69 N.D.
III. case is in this arguments plaintiffs’ thrust The basiс were question constitutional submitted to the provided electorate in the and manner form bylaw. specifically, More plaintiffs contend their initial argument irregular that the form of ballot was so require disagree. the invalidation of the election. We
The Convention was authorized the Constitution to XV, § 2. In its determine the form of the ballot. Article Standing Report explained Committee No. its reasons adopting the used in the election: ballot submitting “Your Committee considered each of separate questions amendments as with YES submitting people This would result or NO vote. major less than 34 Since a questions. for ratification not apathy, your Committee problem to overcome voter *8 many take the time to was concerned that voters will not only or question mark their YES votes but will mark your they this reason opposed are to. For questions to way provided that a should be agreed Committee has voter, wishes, reject approve if he she or each or wishes, or, if he or she one vote questions [Part A] ap- and to questions or against to vote one more the balance prove [Part B].” is that the ballot charged by plaintiffs irregularity The making it “yes” a vote an inherent bias towards contained diluted “yes,” in effect “no” than difficult tо vote more rights. their constitutional and denied the electorate the vote ballot, inertia would cause this voter They suggest that with only slightly opposed to an who were voters than to take rather be recorded favor permit their vote to vote; this, they argue, negative the trouble to record was bias which a subtle form of into the election introduced impermissible.4 4 will not this fact alone any bias. But said to have some Almost ballot can be alphabetical arrangement order on of names The to invalidate an election.
suffice ballot, over others. example, some candidates favor must somewhat an election § amend order which listing impermissible. 11-115.The See HRS is not Such arguably But a bias effect. have had could the ballot in case ments were listed on imposition of an wholly result in the require would that a be unbiased ballot must perfection. impractical standard of
333
knowing
produces
the ballot is
a form which
Where
choice, satisfies
of voter
vote
expression
and deliberate
Tugwell,
v.
approval. Kohler
requirement
of electoral
voter
(D.La. 1968),
The contention for, rather than to cast his vote makes easier for a voter re- or candidate has been against, particular proposition a that the by many It from the cases apparent courts. jected development proce- of election in the progression historical has been from the voice vote dures the various states ballots, of official casting only votes the use secret of step. as an intermediate casting of unofficial ballots the secret originally to to have referred “party appears The term ticket” only the names of the containing ballot privately printed a political party, by particular a forward put candidates vote. Cases box to record his into the ballot dropped the voter century disposition a the last reveal the end of arising around 334 part
on the
of state
in
legislatures,
providing
only
for the use
of
ballots,
official
voting
straight
to continue to facilitate the
party
by enabling
by single
tickets
the voter
so
a
to do
mark
hand,
party.
in
beside the name
On the other
order for
vote,
him to divide his
he was
required mark the ballot in
ways
other
which involved more time and trouble to the voter.
Challenges
treating
to such ballots as
candidates or voters
rejected
were
unequally
Todd v. Board Election Commis
sioners,
(Mich. 1895);
Richards,
64
496
N.W.
Ritchie v.
47 P.
(Utah
Anderson,
1896);State
rel. Runge
670
ex
v.
Parallel
which,
us,
similarly to that now before
enabled the voter to
amend-
party’s
vote his
ticket
constitutional
ments,
candidates, by single
as on
mark beside the
as well
him otherwise to vote
party
requiring
name of the
while
upheld
on the amendments. Such ballots were
separately
Winnett,
(Neb. 1907)and
State ex rel.
State v.
N.W.
(Ohio
Laylin,
1903).
A
ballot” was in
use for
form “scratch
amendments.
approval
electorate
constitutional
amendment affirma-
presented
Such ballots
tively.
amendment,
the voter
To cast a vote
favor of the
the amend-
against
the ballot unmarked. To vote
deposited
ment,
to erase or strike out the words
required
the voter was
It
depositing
amendment before
ballot.
proposing the
an
did not affirma-
argued
deposit
that the
unmarked ballot
consti-
tively
the amendment under state
express approval of
Such
expression
approval.
of voter
required
tutions which
Co.v.
rejected May
challenges were
& Thomas Hardware
(Ala. 1899), and Atwa-
Birmingham,
This of into where may inquired that the motives of voters not be ple
335 If effort of has avoidance of the expressed. their will been any for number casting negative a vote was sufficient reason vote, deny effect to to affirmative we cannot of voters cast an as inade- regard that reason we simply their vote because the lan- “Where misguided, or defective.5 quate, otherwise clear, are meaning of a constitutional guage and in the motivated voters what inducements determination of any of scope outside the adoption of the amendment [is] 628, State, 139 Carpenter v. 179 Neb. judicial examination.” 541, Railway United v. (1966). N.W.2d 545 See also Detroit Detroit, 171, (1921). are here concerned 255 178 We U.S. presented proposition the such man- with a ballot which of the improperly or influence the decision ner as to mislead See, merits, by plaintiffs. voter its as in the cases cited the 1972); (Alaska Conley P.2d 77 Bormhoff, 495 e.g., Boucher v. 136, Hardwick, Ky. (1910); City 132 S.W. New- v. (Ky. 1961). Gugel, 342 port v. S.W.2d provided constitution for the submis- In state Boucher intervals, the question, at certain stated people, sion to Pursuant to there be a Convention?” “Shall Constitutional mandate, prepared of the state governor the lieutenant question ballot follows: posed which . . . by the State Alaska required “As the Constitution (Emphasis be a constitutional convention?” Shall there added) inherently mislead- language prefatory
The court found the that a constitutional convention ing, implied the Alaska by to held Constitution. required be that the ballot Bar contends Association brief of the Hawaii State The amicus Governing Regulations Elections comply Rule 2.3 E5 the Rules failed with to Authority § pursuant to determine 11-4. adopted by HRS Governor Lieutenant to the by were submitted form of the ballot XV, Section of Article approval the Convention was conferred on electorate legislature. we subject Since control and is not Constitution Hawaii question defective, faced with we are not was not the ballot the form of hold that Evidence offered given a defective ballot. recorded to a vote effect the form of ballot respect plaintiffs effect on voter motivation accordingly irrelevant.
In Conley Kentucky court invalidated a referendum election in which or not permit permit the issue was to sale the ballot “Dry” The column on was headed of intoxicants. and the “Wet” column representation of the Bible whiskey drawing protruding of a bottle with a snake from its mouth. The court said: devised law to secure a fair
“The ballot is a means never people, will of the should expression of the advantage side undue give devices that to one an contain any highly improper It was to use devices over the other. all, absolutely inexcusable to use the devices refer- at at 141. to, of them.” 132 S.W. red or either challenge In the elеction concerned City Newport Pay be voted was titled “Fair proposition ballot wherein this to be in violation of the statu- Petition.” The court found said: tory submitting proposals such and further mode for are mild and not pay petition’ the words ‘fair “While it is prejudices, violent nevertheless calculated to arouse voting ballots and machine plain they put that were on the thought that and with the propaganda purposes labels for . . they in fact influence the voters . would [*] [*] [*] [*] pay ‘fair that use of the words opinion
“. . . It is our was voting machine labels petition’ on the ballots the election.” as to invalidate impropriety such an at S.W.2d 519. cases, on placed proposition
In each of these as to implied a recommendation ballot a form which influence the attempt to improper to be an vote. This was held find do not the election. We and to invalidate election result here. this to be the situation
IV. question is the Intimately bias issue related to ballot Question argue, example, duplicity. plaintiffs Amount) (12 Jury; Civil Case the ballot Member No. ought separate been as two presented propositions to have *12 one, as presented instead of inasmuch the question con- the (1) to raise proposal tained a subject two different matters: cases, (2) pro- and a minimum in civil jury amount for trials accused, guarantee posal charged an serious crimi- offense, jury They nal contend that in this persons. oftwelve prohibi- the and in other similar the ballot violated respects, into a against incorporation subjects tion of different single disagree. proposition. ballot We Constitution,6 is no provided
Unless otherwise
there
be
in a
subjects
may
limitation on the number of
that
included
Brown,
amendment. State v.
10 Ohio
proposed constitutional
139, 226
Justices,
116 (1967);
St.2d
335
Opinion
N.E.2d
of
Sours,
369, 74
(Ala. 1976);
373
31
P. 167
People
So.2d
v.
Colo.
Mewborn,
County
143
(1903).
City
also
and
Denver v.
See
of
407, 354
(1960).
nothing
P.2d
in the Hawaii
Colo.
155
There is
Constitution that
that a
support
will
reasonable conclusion
single
proposed by
to the constitution
a constitu
subject,
tional convention
than
can contain no more
one
§
III,
15,
purpose
And while Article
object.
or
Hawaii
Constitution,
legislation
expressly prohibits the enactment of
such a
is
embracing
subject,
proscription
more than one
6
duplicity
plaintiffs
were decided on the
on the issue of
The cases cited
provisions
multiple
express
proscribing the
of
sub
inclusion
basis of
constitutional
208,
Kerby Luhrs,
jects
single
proposition.
44 Ariz.
portrayal meaning, proposition, plain of chief features ofthe words of so that it by persons enough can be understood to vote entitled .... is sufficient if is [I]t printed identify purpose.” on the ballot the matter and its show character Wright Dist., supra, v. of Ind. Board Trustees of Tatum Sch. at 792.
V. assert, however, that the electorate The further plaintiffs concerning pro- necessary information deprived of was is the deter- This, appears, it amendments. now posed broadly, question Stated more minative issue this case. been can be said to have is results of election whether the informed electorate. the mandate of an Constitution, § XV, 3, present requires Article of the published “once each legislatively proposals initiated general newspaper at four weeks in least one successive newspa- such in each senatorial distriсt wherein circulation immediately period within the two months’ per published, is no re- There such preceding general next election.”8 initiated amendments. imposed convention quirement Convention, however, the public to inform required was The amendments. and effect of contents Cf. Buchanan, City Glendale v. supra; Tugwell, Kohler v. supra. informing the electo- upon the Convention burden heavy, reason especially required, but
rate
by it.
complexity
of the amendments
number and
members
Correlatively, however,
upon
was incumbent
with the
familiarize themselves
public to educate and
ex-
amendments before
and effect of the
contents
*14
Tugwell, supra;
v.
at the
Kohler
pressing
polls.
themselves
10,
(1976). This
cast
Tugwell,
informed ballots. See Kohler v.
supra; McLen-
Aldredge,
nan v.
223 Ga.
(1968);
There were flaws which we have found fatal certain of amendments. We refer these amendatory specifically to deletions and additions of a sub- were not in both stantive nature which mentioned the infor- supplement. mational booklet The vital newspaper significance express repre- of these omissions stems from the in its that the full sentation of the Convention advertisements text of public the amendments would be made available to the for its objective, To accomplish examination. caused be published which, in newspaper type, bold supplement informed the reader: “THE TEXT THE COMPLETE OF Summary” informing We think was an the “Con-Con excellent method of Convention, however, *15 voter of the amendments. The could have devoted space comparative analysis more to a than it did of the substantive effect of the proposed amendments. IS IN AMENDMENTS CONTAINED CONSTITUTIONAL full text It did not fact contain THIS SUPPLEMENT.” however, was The public, amendments. of all of the Convention-inspired repre- rely these upon entitled to supplement right expect that It had the sentations. contain, at would statewide dissemination which received all of the very least, the material substances (which in- that the ballot Thus, to the extent amendments. failed supplement and the booklet) the informational cluded and of a nature effect the substantive to reveal unin- amendment, deemed to have been the voter will be Kohler particular respect to that amendment. formed Cf. Tugwell, v. supra. those ourselves are which we address
The omissions to agreed attention state- called to our which have been omissions, reviewing we In these parties. ment of facts of the the election re- of whether confined to a consideration are of the electorate. expression valid of the will sulted in a expression are not given to be meaning and effect This limitation excludes among presented to us. the issues the constitu- any interpretation of from our consideration submitted to find to have been which we tional amendments determined that We have by the electorate. approved the proposed omissions are fatal to certain some of these may have in such omissions significance What amendments. of the amendments and effect determining meaning the issues is outside approved were submitted which express opinion.10 no case, wе such upon questions nature concerns a substantive major A omission of 5,§X, Constitution, of Article deletion, present from the provides: adoption, not, example, inquire their other whether as a result of We do into necessary implica changes have been effected substantive in the Constitution Price, Sours, Aldredge, supra; supra; People v. Keenan v. McLennan tion. See v. partial supra. invalidation. See concerned with the effects Neither are we here State, Carpenter supra. v. *16 AND
“FARM HOME OWNERSHIP “Section 5. public The lands shall be used for the devel- opment farmof and ownership home on as widespread basis possible, in accordance procedures with prescribed by limitations law.” (Emphasis added) deletion, This particularly respect phrase to the “and ownership,” home represents a change fundamental in con- philosophy stitutional regarding the public use of lands. To a populace home-starved may fairly which characterize the Hawaii, people of change in emphasis is a substantive they matter which were entitled to address themselves at polls. They given were not opportunity to do so. Accordingly, we hold that the amendment adopted by the deleting present X, 5,§ Convention entirety Article in its validly ratified. major Another omission of a substantive nature concerns XII, 7,§ New Article provides: “The term any ‘Hawaiian’ means descendant of the races inhabiting the Islands, Hawaiian previous to 1778. any Hawaiian’ means
“The term ‘native descendant of not less than one-half part of the blood of inhabiting races the Hawaiian previous Islands to 1778 as defined Act, 1920, Hawaiian Homes Commission as amended or may be amended.” proposed
This present (New amendment to Article XI Article XII) properly presented was not public its consid- Question eration under (Office Affairs) No. 28 of Hawaiian was, therefore, not validly ratified. relatively Several other minor amendments of a substan- tive nature have failed also of ratification for the same reason. These concern the III, § 2 amendments to Article 3;11 § IV, the addition to 5,§ New Article of a new III, § § amendments to Article 2 and 3 are as follows [new material underlined and deleted material in brackets]: composed twenty-five 2. members, “Section The senate shall be who shall qualified respective be elected voters of the senatorial districts. [Until paragraph 9;12 numbered to Article XVI, § 1 (New XVIII, § Article l);13 and the deletion of *17 portion III, 4,§ of Representation Artiсle entitled “Minimum for Basic Island Units.”14 hand, we find amendment to
On the other the III, § III, 11), pre- § which was Article (presently Article 10 Terms, Question (Legislative to No. 7 public sented the under Procedures; validly to have been etc.), Functions the was not con- ratified. the full text of While proposal summaries of the the the supplement, tained fairly supplement both the and the informational booklet and effect of sufficiently voter of the substance advised the New Tugwell, supra. v. See Kohler the amendment. reapportionment of to districts and the number senators next The senatorial the] [Schedule.]reapportionmentplan be elected from each be as set forth the shall by reapportionment as established the commission.” fifty-one representatives composed shall be “Section 3. The house of members, by respective represen- qualified who be elected voters of shall representative reapportionment, districts districts. The the] tative next [Until representatives as forth in be elected from each shall be set number of by plan reapportionment reapportionment as established [Schedule.] commission.” 12 5, 9, IV, Proposed provides: § par. New Article effecting given redistrict- shall senators in “No be to holdover consideration ing.” XVIII, 1, Proposed provides: § Article New reapportionment and the number of the senatorial districts “Until the next reapportionment the 1973 from set forth in senators to be elected each shall representative number plan. reapportionment and the districts Until the next representatives set forth in the each shall be as to be elected from of reapportionment plan.” III, § 4: following Article deletion from The is ISLAND UNITS FOR BASIC “MINIMUM REPRESENTATION initially than a representation any allocated less unit basic island “The augmented representatives shall be and three senators minimum of two allocating necessary representatives attain of senators or thereto the number notwithstanding 2 and number, provisions Sections such minimums which body appropriate membership until the ofthe be added the this article shall 3 of any unit so representatives basic island or reapportionment. senators next is the number numerator vote wherein the augmented fractional shall exercise specified.” above initially is the minimum denominator allocated and the III, § amended, Article as thus reads as follows: regular
“Each session shall be recessed for not less days period than five at some between the twentieth and days fоrtieth regular legislature session. The shall determine the dates of mandatory recess concur- Any rent may resolution. session be recessed concur- rent adopted by resolution majority members to which each house Saturdays, Sundays, entitled. holi- days, days in mandatory any days recess and in recess pursuant to a concurrent resolution shall be excluded computing days any the number of session.” We find stylistic also the purely changes and technical Question (Technical embodied in No. 34 Style Changes), to & *18 have validly been ratified.15 changes These consist the of of meaning substitution words of similar appearing for those in existing the by Constitution. example, provided For “as law” appears law,” instead of “in “pre- accordance with scribed” instead “provided,” chairperson” of serve “shall instead chair,” “made,” of “shall “provided for” of instead and addition, the like. In person’s” words such as “the are “his,” “himself,” substituted for “oneself” for “the ac- “him,” cused” for and the changes like. Numerous are made in punctuation grammar. and require publication To the these in non-substantive amendments full have would been superflous and publication would have the the required entire Constitution. It would appear reading from a of the standing only Conventiоn’s report committee the “PREAMBLE” and “FEDERAL CONSTITUTION ADOPTED” portions of the present were left Constitution by untouched stylistic surgery.16 committee’s purpose comparable, is on a The obvious of the amendment constitutional level, duty §§ to to 2-6 and 2-10 of the state’s revisor of statutes under HRS ensure, consistency throughout statutory possible, where scheme manner sense, style. However, revisions, may not, making the revisor such alter the meaning any or effect of Id. act. 104, moving adoption Standing Report Delegate In for Committee No. Hamilton informed the Convention: — — Finally, Style really engaged . . we were with two Committee on fairly previous functions. The first true in was the one which had been traditional however, of a other amendments be, appears
There from the readily apparent are nature which substantive was the electorate Question In No. report. committee Con- “changes unspecified certain approve asked to [in] unconstitutional or may now be subject stitution where United States.” unnecessary under Constitution since it especially request, vague was too broad This valid the law. However changes in the fundamental involved been, people, it for the might have was reasons Convention’s information, whether to determine adеquate based upon undergo ought law State organic extent the of the to what revision. any amendment submitted question whether in fact thus de- Question approved No. 34 was
approval If the is its law. amendment upon effect substantive pends nature, alter the and does not stylistic and technical purely Constitution, sense, meaning any effect of of the provision or part and has it was the electorate become approved hand, revised On the other if the Constitution. sense, meaning any provision
alters the or effect of Constitution, change not ratified and not effective Obviously, language we are not now of the Constitution. make line line determinations. Neither position to these meaning and effect of presently are we concerned with any by the of the amendments Convention.
Finally, as all of the other to the presented amendments by the for people ap- 1978 Constitutional Convention their balloting proval, we find that and publication constitutional consistency, capitalization, conventions, style, phraseology, and this involved also, course, arranged responsible punctuation for and had on. We were and so logical proper The order. Committee seemed and articles whаt the.various by given rid Style One was to it the Convention. time had two new functions this terms, any discriminatory adjectives pronouns, other and the Constitution of done. that has been Constitution, thing restyle had not been entire which was to “The second too, That, is consis- Thus the entire document has been done. since 1950. done President, capitalization I punctuation, forth. Mr. would and so tent terms adoption.” its recommend Accordingly, have been satisfied. requirements we hold that proposed these amendments have been ratified. B. Songstad
Steven plaintiffs. Funaki for defendants Paty William Karen James Iwamoto. Sousa, Deputy Attorney General for
Maria defendant Lieutenant Governor Doi. G. M. M. Masada
Daral Conklin Melvin for Hawaii Association, State Bar amicus curiae. KIDWELL, AND
CONCURRING OPINION OF DISSENTING J. I without reservation in most of what is said join agree am that either the amen- opinion, court’s but unable to III, datory language appearing in Article Section 10 of the Convention, by the or the amend- constitution as revised No. were purportedly presented Question ments under XV, by approved general required at the election as Article 2 of the constitution. Section amending provided
The the constitution procedure for XV, gives proposal Article Section no effеct to the they amendments unless are submitted to the convention proposition I approval. dispute electorate for do not may accomplished amendments submission of physi- placing without the text of the amended constitution cally polling place. opinion before each in the voter analyzes prior taken to inform the voters steps amend- to the effect of the respect election with ments, part premise steps on the that those constituted amendments, than rather of submission of the process with what was only designed acquaint voters process is, of what my opinion, This an incorrect view submitted. taking place. was Convention,
The definitive action of the set- upon and determined the tled submission, adoption manner of their of Resolution By No. 30. resolution Convention resolved: *20 proposed That the be amendments to the Constitution to the people submitted of the State of Hawaii in the form rejection at ratification or hereto for attached the ballot day the 7th to held on election be general . shall ballot November, . . Such submission be 1978. the results thereof deter- and shall be conducted and XV the Article conformity in with Section mined be .... for such submission shall The ballot Constitution. (Emphasis .... attached substantially in the form hereto added) contains No. 30 ballot attached to Resolution
The form of to each voter: communication significant information the booklet Please read instructions and proposed is The full text of the part which this ballot. 1-34, inclusive, is on the ballot numbered amendments voting your unit. inspection available for presented No. 30 was to Convention Resolution Information, and its on Submission report of Committee the Convention. The adopted by report report which was complex lengthy too to recited that the amendments were ballot, and stated: be listed on the will be amendments The numbers accompany will booklet which explanatory to keyed an text of Constitu- a complete and also to the ballot card voting unit. each changes displayed tional of the Constitution will The stated that “full texts report also are unit, thereby enabling who placed at voter voters examine opportunity an completely prepared adequate not Consti- amendments and revised arid review tution as whrile.” public pro- information report committee
gram the fact that which was in conducted nature opinion. is in the Authorization described court’s program given conduсt this informational commit- However, nothing in by adoption report. tee of the committee change the report suggests authorization to committee to the voters which manner of submission of provided No. 30. Resolution in- present to our significant are reasons which For No. 30 for in Resolution prescribed procedure quiry, *21 submission the amendments to the electorate precisely. was not text followed full of all of the proposed made in polling not available places. the Instead, of the copies newspaper supplement been had published on October 1978 were distributed to and were available for polling places. examination each the Not- the withstanding representation made that supplement the it contained the full proposed amendments, text the the text amendments which are now in question was omit- inspection. ted was not available for I voter am unable to dismiss this as an departure immaterial from the manner of upon by submission which was determined the Convention. Had text of none of the amendments made been available at polling places, voters the departure from the prescribed manner striking of submission would have been disregard. and difficult to Yet as each оf the amendments text of which was omitted from the material delivered to polling places departure equally striking. amI that, amendments, forced to the conclusion as to those submission voters a manner determined place did and those Convention not take amendments did approval. receive voter
The mechanical test which I apply would to determine may part which amendments became a of the constitution appear to elevate form over substance. The effort of majority solution, however, an places to find a different inus uneasy position uncertainty our precise wording law. opinion fundamental The court’s makes the effect affirmative 34 a Question question vote No. for inquiry whenever I meaning sought. of the constitution is would result, that I avoid our on what place determination rationale, by holding consider to be a sounder voter only to the full approval extended amendments contained in newspaper supplement. text “A”
APPENDIX *22 APPENDIX “B” *23 INSTRUCTIONS VOTING your Constitutional Convention only Vote Part B of Ballot. A or Part VOTE BOTH PARTS OF BALLOT. DO NOT IN THE approve you YES Vote ALL amendments in Part if A A: PART Constitutional Convention.
OR you disapprove Vote NO ALL if tiie Part A Convention. Constitutional amendments you approve Vote but if amendments Part B of some B: PART proposed by disapprove of other Select Convention. Constitutional those amendments NO disapprove you selections. of and vote those that YES. questions willbe all counted Your vote on other BY CONVENTION CONSTITUTIONAL 1-34PROPOSED AMENDMENTS 1.12 3.RIGHT 2.INDEPENDENT GRAND JURY 4.OPEN PRIMARY ELECTION. II AMOUNT (Anide H If COUNSEL (Article If adopted, adopted, adopted, (cid:127) ¤ (cid:127) (cid:127) adopted, (cid:127) MEMBER civil question jury than grand requires an use of some a privacy personal pay directs this section. adds a new section (cid:127)bout what election keeps preference a secret. allows person person way to choooe thoee TO PRIVACY. independent I, It, case in a criminal and how $100 Section (Article Section 13 party he or she *24 jury. Section this amendment themsetvas. this this amendment each tilts amendment the a for (Article Section without that JURY; things, and controls shall am have where the amount person or $1,000 people to legislature person's the 8) personal information more as I. long 4) have* 12 member I, lawyer CIVIL CASE letting to vote in legislature jury trial. they or (cid:127) on the jury do certain more party prefers. to (cid:127) anyone know provides lawyers, to advise shall provides: now reads. carry out II) trial any rather right aet work. the in a 14) their and to 5. RESIGNATION 7. LEGISLATIVE 6. PUBLIC OFFICE. tiie legislature (Article ELECTIONS; if CONTRIBUTION COMMISSION FINANCING; and IV, AND If If adopted, adopted, (cid:127) (cid:127) (cid:127) adopted, (cid:127) (cid:127) (cid:127) makes the (cid:127) Sections 6 who quit office If the terms of office are makes require primary general tiie same. political campaigns create a for years to limit the amount a the disapproves. set of 20th candidates. requires requires governor satanes which wit! 15; legislative November PROCEDURES; SALARY any not less (f, all a Article before following wants to run and Sections spending from then bilis to be introduced and cost this amendment: candidate or legal this amendment: any elected election campaign a recess after the deadline the SPENDING 40th session PARTIAL or shall: and salary TERMS, XVIII, (Article running OF CANDIDATES than 5 30,1978 legislature of state and local the appointment LIMITS. legislature (Article 7) 5,6 limlt-for legislature by 45 more on to election Section Article commission for days til, person go for fund to public FUNCTIONS PUBLIC and another I!, Sections AND set a deadline into ^et any or day. public provides all between 8) Section unless every 2; to campaign of a legislative officer may effect for pay other precede office office. on FOR 9.12 give part tiie 7) also the 8.REAPPORTIONMENT 9.EXECUTIVE (Article LIMITS. Article If If (cid:127) provides (cid:127) adopted, (cid:127) (cid:127) opens adopted, (cid:127) (cid:127) (cid:127) (cid:127) each or final staggers senators and committees. increases the waiting general of the senators senators required staggered ^apportionment. changing area from 8 days (from 120 to making pnnted increases'the time'between puts beginning districts. requires which to file governor United commission limits allows functions department. XVIII, IV, (Article units with similar genera) election. the governor Sections this amendment: the commission 30 States reading bill is distributed and meetings election the for between Section the terms of office for DEPARTMENTS; starting to two (cid:127) of boundaries terms for tins amendment; V,.Sections placement to the same executive to also reapportionment its public all method of Congressional year. from hours to willbe elected at reappomonment 1,2 terms in a row so that 4) from years 1SO PROCEDURES. and lieutenant reapportion the legislative and period time the 1978 purposes decision days) senate about for keeping the beginning 1.2 8) holdover more when the TERM voting the and 6. its third in half upon and (cid:127) in 10.COURTS; SELECTO*; JUOICIAL (cid:127) 13.8PECIAL REVENUE includes a transitional section which PURPOSE VI, 1.2,3. (Ariete DISCIPLINE. Section provides (1) for BONDS. effective date on XVII!, 4 and 5) 1,1981, Ariete Section (Article 13) (2) July policies 12 and for uniform Sections Vlh and methods of real assessing adopted, H this amendment: adopted, If this amendment: property by majority of a agreement or, ol the сounties in the absence of (cid:127) (cid:127) creates an Intermediate of legislature, by court allows the a law, agreement, by such general appeals, house, and makes «Sstrictcourts a two-thirds vote of each (3) and for dedications of land for )o constitutional rather than pass to legislative enabSng legislation use, specific for assessment at its special authorize issuance of use, In value such and for real purpose revenue bonds Ifthe property exemptions, tax both of (cid:127) they makes courts Untilthe time issuance of such bonds is found a which shall (period be altered for have to finish their cases. public by to be Interest the except years, of eleven legislature. may increases for either (cid:127) granted removes minimum salaries for majority of a of the judges agreement from the constitution and (cid:127) special allows the of issuance counties. salary creates a commission. purpose bonds for revenue manufacturing, processing or (cid:127) requires judges to be Stale of enterprises, industrial utilities 17.PUBLIC HEALTH AND WELFARE. Hawaii residents and citizens public, health serving general IX, 7, 8,9 2,3,4, (Article of the Sections and State and the United provided public care facilities 10) Slates who are licensed by non-profit сorporations, low and attorneys. and moderate income government adopted, If this amendment: programs. housing (cid:127) judicial adds a selection commission (cid:127) flexibility programs allows for care judges to recommend for the (cid:127) requires a second two-thirds vote of handicapped. ol court, supreme appeals court of or each of the house before legislature picked circuit court who are then any project bonds can be issued for (cid:127) power to gives legislature (he approved by and governor program. or eligibility for establish standards senate, judges for or district courts public assistance. picked by justice who are the chief (cid:127) requires that State credit cannot be supreme of the court. directly indirectly used or and State (cid:127) power deletes the to conserve and repayment shall not be hable for of develop beauty natural which is (cid:127) supreme court more gives power bonds. to Article on Conservation shifted disdpitnti-judges to and starts Development and of Resources. judicial discipline commission. (cid:127) allows the to authorize legislature bonds tiw counties to issue such (cid:127) provide tee to authorizes State requires but a two-thirds vote of the (2) (1) рublic safety, security of tee county before such bonds council preservation elderly, (3) cultural may be issued. LIMIT; resources, 11.STATE (4) SPENDING TAX promotion and of a VII, (Ariete 4, S, REFUND. Sections healthful environment. 6.8 (cid:127) excludes such bonds from the State 9; VIII, and 5) Ariete Section county or debt fimfts. adopted, If 10. POPULATION GROWTH this ameridment: . IX, (Article 6) MANAGEMENT. Section (cid:127) 14.REVENUES; BUDGET; limits State .spending fund POST-AUDIT. general adopted, If this amendment: 7,8 to VII, the estimated rats (Ariete 10) Sections and growth tits State's economy applies and (cid:127) requires tee State and its counties adopted, If this amendment: bmit to the and governor’s budget plan ol to and manage growth appropriations. legislative (cid:127) population except to that each establishes a council revenues the county (cid:127) plan prepare may State revenue estimates and their taxpayers a refund or credit manage gives requires and and in more restrictive manner whenever the fund balance growth governor general to consider such than the State percent is more than five legislature general developing estimates in the State fund years revenues for two in a appropriations. and budget making X, (Article 19. BOARO OF EDUCATION. (cid:127) (cid:127) provides for direct prohibits submission spending defic<t unless the 3; XVIII, 2 and Sections Article judiciary health, of its says pubic that the budget governor 7) Section safety or welfare is threatened. legislature. If adopted, this amendment: (cid:127) (cid:127) duty clarifies State author's requires the State to share In the post-audits programs include any programs cost of new or (cid:127) with the 1980 beginning elections, general peiformance of State Increased services which the agencies. of the board of members requires that counties legislature will In education be elected nonpartisan manner from two 15.TAX TAX REVIEW AND districts, school board one at-large CONFORMANCE. district for Oahu and the second VII, (Ariete 3) 2 and Sections for the district islands neighbor LIMITATION; 12.DEBT Each school board district wit! EXCLUSIONS. adopted, If this amendment: VII, (Article departmental of several 13) Sections 11 consist schopl districts. (cid:127) all allows the to conform legislature adopted, If this amendment: portion any of the State income or (cid:127) provides that at least one member tax tax laws to federal income (cid:127) principal limits the and interest on of the board of education live percentage State debt to a departmental each school district. fund revenues. (cid:127) general tax commission establishes a review (cid:127) provides that the board of education the State's tax structure to evaluate (cid:127) keeps approving from junsdiction, subject has legislature general and recommend revenue and tax laws, more bonds than are allowed under over the internal organization the debt limit. public management system school (cid:127) requires that each general obligation repaid twenty-five bond be within 16.COUNTY POWER TO TAX REAL (Article PROPERTY. Sections 3 and VIII. XVIII, EDUCATION; 6) Article Section 20. HAWAIIANSTUDIES. 5. (cid:127) excludes certain bonds from the X, (Amele 4) 1 and Sections county adopted, State and debt limits If this amendment adopted, If this amendment’ *25 (cid:127) (cid:127) appropriations automatically cancels the counties the exclusive grants power (cid:127) functions, public by prohibits financed discrimination to exercise all general obligation powers bonds funds if not under and to institutions on the basis or duties the educational general relating spent years. contract or within three property taxation of real 21.UNIVERSITY 22.WATER 23.ENVIRONMENT 24.LAND If AND CONTROL If (Article (Article If PROTECTION. AGRICULTURAL (Article If adopted, this amendment: adopted, (cid:127) (cid:127) adopted, (cid:127) (cid:127) (cid:127) (cid:127) adopted, (cid:127) (cid:127) provides for the Hawaiian clarifies obligates control, language program. requires the legislature (cid:127) benefit of organization the regulate Hawaii's statewide that there exclusive agency requires the State and counties conserve and beauty requires the State to Hawaii. requires the State natural resources defined development and use of these resources clean and healthful the State. gives benefit of and gives legislature lands agricultural requires the State to important for requires agriculture promote the future of agnculture. certain standards used for approve changes the legislature approved governmental X. enforce this MANAGEMENT; XI, University RESOURCES: XI, nght promoting conserving Section each each this amendment: Sections tills will be available Sections 3 and and to and the board of this amendment: by law. water the water. BOARD the State history, and jurisdiction, the* laws, in a reasonable that lands Is a water any other help protect, in manner consistent amendment: may limit and by two-thirds vote of person person regulate natural resources lands are and AND (Article people of Hawaii. 6) a Hawaiian people protect the natural LAND. resources body which Is over the right promotion are met and 1 and these resources Hawaii. management culture, and OF REGENTS. RESOURCE to to hold all and entena set in the use of the self-sufficiency of the right PROTECTION environment as purpose unless identified as XI, but resources regents' the trust promote the subjеct to protect, Identify 9) needed to to insure 4) (cid:127) nght control, and Section Hawaii. internal uses of for the shall not be regulate education for the manner. of (cid:127) to a to sue public which of to (cid:127) 7) 25.CONTROL 26.RESTRICTIONS 27.DEPARTMENT 28.OFFICE 29.TRAOITIONAL If (Article ENERGY. If amended, 221) Homes Commission Act If LANDS. (Altele If RIGHTS. adopted, If (cid:127) adopted, this adopted, (cid:127) adopted, this amendment. (cid:127) deems permits control interests adopted, for a (cid:127) gives waters the boundanes within the manage and manage as federal reserves adds to public's use and state-licensed the legislature maricuiture construct material two-thirds plant house requires guarantees requires the Department of Hawaiian continue. allows establishes Affairs with an sets benefician effective trustees allows traditionally exercised. regulation, to have Hawauans. operating XI, prevent public, lands XII, public OF (Article the State the or forth the trust Section exercise of development this amendment: (Article (Article Sections OF the and lands been of the this amendment: Department in real the list descendants this amendment. Sections and and control the ocean dispose of radioactive to receive to the anyone HAWAIIAN boundaries of a nuclear date which are located or Internаtional MARINE RESOURCES. of the State to establish guidelines those use es of operations to the OF HAWAIIAN but-requires the AND that traditional customanly and ON NUCLEAR XII, an subject to state control ocean legislature legislature. XI, XII, 6) (cid:127) provides manculture property exercise and of the (cid:127) of areas not (cid:127) State the State from elected 204,212,213 Office to the Admission Section Hawaiian enjoyment of the wishing which are located areas where members of Section 4,5 such CUSTOMARY Section power to acquire purpose. and land fission corpus and more AFFAIRS. (cid:127) of native State as of Hawaiian (cid:127) for an power approval of board in order to to tire Stale rights right 1; to (cid:127) Home protect 8) flexibility. law operation 8) 6) fund the doing waters power funding open HOME outside use; does each to be to long Act. so. to (cid:127) 30.CODE 31.PREAMBLE; 33.MISCELLANEOUS 32.LIMITS ON 34.TECHNICAL If Sections AND MOTTO. If Section (Article If XVI, If adopted, this amendment: If (cid:127) (cid:127) adopted, (cid:127) aáopteo, adopted, (cid:127) (cid:127) (cid:127) adopted, (cid:127) (cid:127) extends (cid:127) makes small changes provides that disclosure. and constitutional requires an require previsions commission requires office requires candldates'for revises Include affirms State's picks languages just says or less to real possession, would eliminates in 20 another (cid:127) from possession, giving genera) clarifies convention lets the be asked Sections changes subject or changes words they Constitution related replaces words other OF XVI, employees. unnecessary under 2) 1,4 accused) ETHICS. to file financial a State holding that years. plain apply to this keep this amendment. this amendment them that the State's islands. property the Preamble. the waters around ethics codes may be claimed which this amendment: ADVERSE lobbyist Section constitutional next constitutional election may now and STATE BOUNDARIES AND STYLE the Constitution governmental style and language (Preamble, if amendment: independent language. to start and they persons time but not more except that five acres ethics codes must convention 5 months 5) public office. English motto and apply of subversive supervise ethics acqumng of title only men or (Article main REVISIONS. the United registration. 12) 13: which sound (cid:127) a month instead want to (cid:127) when voters for financial be unconstitutional adverse POSSESSION; Article disclosures purposes to (cid:127) (cid:127) convicted and Article convention. XIV) before boundanes everyone. political CHANGES. by adverse delegates wntmg official (cid:127) 4.of have than once Hawaiian. earlier all the where States. XVII. women activities XV. (Article are like must (not must